How can there not be a conflict of interest if the executor is also the sole beneficiary? Do the two roles just merge, or is the person supposed to act differently depending on the circumstances. For example, what happens during mediation?
Executor is the sole beneficiary - conflict of interest?
- Thread starter johnmelb600
- Start date
Dear johnmelb600,
Unclear what you are asking. One person cannot fight himself nor enter into a mediation with just himself. So there is no conflict. Sole executor who is also sole beneficiary is quite common (e.g. mum died, leaving only a son and no other family) so it is definitely possible to be legal as well.
Good luck!
-Nighthelyn
Unclear what you are asking. One person cannot fight himself nor enter into a mediation with just himself. So there is no conflict. Sole executor who is also sole beneficiary is quite common (e.g. mum died, leaving only a son and no other family) so it is definitely possible to be legal as well.
Good luck!
-Nighthelyn
Thank you, Nighthelyn
I meant if somebody contests the will. The executor defends the estate, but then he'd also be defending his interests. I suppose that is allowed if it is possible to be both executor and beneficiary.
Thank you
I meant if somebody contests the will. The executor defends the estate, but then he'd also be defending his interests. I suppose that is allowed if it is possible to be both executor and beneficiary.
Thank you
Dear johnmelb600,
Okay - your question is complicated and you may need legal advice. Broadly though:
1. the arrangement of having a deceased estate where the executor is also the sole beneficiary is still legal even if someone is contesting the will. There is not always a conflict of interest issue per se because executor‘s duty is in one hand to step in the shoes of the deceased estate willmaker, but at the same time act reasonably to all beneficiary in the will and (to put it very simply) people who reasonably should be in the will. Because of the executor’s duties which may not all work in unison, it is a complex exercise to determine if an executor should remain or not and purely because there is only one beneficiary on a will is not enough.
2. In certain situations, the executor who is sole beneficiary named in the will may compromise and reach a deal if the party contesting the will has a valid claim or family provision claim and the executor may feel necessary to resign and have someone else be appointed. This really depends on the family dynamics and there is no hard and fast rule.
3. The plaintiff contesting the will may also consider making an application requesting an executor to be removed. However “conflict of interest” isn’t a ground recognised by itself (e.g. QLD is “acting in their own best interests” NSW “failure to satisfy its fiduciary duty in its role to the estate” both would be stronger standard than just “conflict of interest”), rather it is a combination of evidence proving that that an executor is to not be performing their duties appropriately, or they are dragging out the process of administering the estate through an excess period (years) or found to be acting in their own best interests. Courts of every states all have some form of discretionary power to remove an Executor and to replace him/him by appointing an administrator with the will annexed.
4. This means that, I am assuming you are considering to challenge a will, and the executor who is defending refuse to resign, you will need to (probably with the assistance of an estate litigation lawyer) determine what to do, and in certain situations, it may be in your legal interest to or not to challenge the executor’s appointment.
Good luck!
-Nighthelyn
Okay - your question is complicated and you may need legal advice. Broadly though:
1. the arrangement of having a deceased estate where the executor is also the sole beneficiary is still legal even if someone is contesting the will. There is not always a conflict of interest issue per se because executor‘s duty is in one hand to step in the shoes of the deceased estate willmaker, but at the same time act reasonably to all beneficiary in the will and (to put it very simply) people who reasonably should be in the will. Because of the executor’s duties which may not all work in unison, it is a complex exercise to determine if an executor should remain or not and purely because there is only one beneficiary on a will is not enough.
2. In certain situations, the executor who is sole beneficiary named in the will may compromise and reach a deal if the party contesting the will has a valid claim or family provision claim and the executor may feel necessary to resign and have someone else be appointed. This really depends on the family dynamics and there is no hard and fast rule.
3. The plaintiff contesting the will may also consider making an application requesting an executor to be removed. However “conflict of interest” isn’t a ground recognised by itself (e.g. QLD is “acting in their own best interests” NSW “failure to satisfy its fiduciary duty in its role to the estate” both would be stronger standard than just “conflict of interest”), rather it is a combination of evidence proving that that an executor is to not be performing their duties appropriately, or they are dragging out the process of administering the estate through an excess period (years) or found to be acting in their own best interests. Courts of every states all have some form of discretionary power to remove an Executor and to replace him/him by appointing an administrator with the will annexed.
4. This means that, I am assuming you are considering to challenge a will, and the executor who is defending refuse to resign, you will need to (probably with the assistance of an estate litigation lawyer) determine what to do, and in certain situations, it may be in your legal interest to or not to challenge the executor’s appointment.
Good luck!
-Nighthelyn
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